Punjab-Haryana High Court
Kulwinder Singh Alias D.C. And Others vs State Of Punjab on 3 October, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
Criminal Appeal No. D-403-DB of 2010
and Criminal Appeal No. D-835-DB of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. D-403-DB of 2010
DATE OF DECISION : October 03, 2013
Kulwinder Singh alias D.C. and others. ..Appellants
Versus
State of Punjab ...Respondent
Criminal Appeal No. D-835-DB of 2010
Sohan Lal ..Appellant
Versus
State of Punjab and others ...Respondent
CORAM: HON'BLE MR.JUSTICE M.JEYAPAUL
HON'BLE MRS. JUSTICE ANITA CHAUDHRY
Present: Mr. Amaninder Preet Singh, Advocate (legal aid counsel)
for the appellants in
Criminal Appeal No. D-403-DB of 2010
Mr. Preetinder Singh Ahluwalia, Advocate
for the appellant
in Criminal Appeal No. D-835-DB of 2010
Mr. B.S. Bhalla, Additional Advocate General, Punjab
for the State-respondent.
***
1. Whether the judgment should be reported in the digest? Yes
M.JEYAPAUL, J.
1. Singh Parvinder Accused Kulwinder Singh @ D.C. and Raj Kumar @ Raju 2013.10.11 15:28 I attest to the accuracy and integrity of this document Criminal Appeal No. D-403-DB of 2010 and Criminal Appeal No. D-835-DB of 2010 2 were convicted under Section 302 IPC and accused Kamlesh Rani was convicted under Section 302 read with Section 120B IPC. They have challenged the conviction and sentence passed by the trial court in Criminal Appeal No. D-403-DB of 2010.
2. The complainant Sohan Lal has filed Criminal Appeal No. D- 835-DB of 2010 seeking enhancement of the sentence of fine and payment of the same as compensation to the legal heirs of the deceased.
3. Mr. Preetinder Singh Ahluwalia is the counsel for the complainant but by oversight we had appointed Mr. Amaninder Preet Singh as counsel for the complainant from the panel of legal aid by virtue of our order in Criminal Appeal No. D-835-DB of 2010 dated 8.7.2013. Such an order passed by oversight stands recalled hereby.
4. The case in brief of the prosecution is that deceased Tarsem Lal was the brother of PW4 Sohan Lal and PW9 Naranjan Dass. Accused Kamlesh Rani was the wife of deceased Tarsem Lal. PW12 Sunil Kumar is the son of deceased Tarsem Lal and accused Kamlesh Rani. About a week prior to the occurrence which took place on 30.05.2005 deceased Tarsem Lal informed PW4 Sohan Lal that accused Kamlesh Rani and accused Kulwinder Singh @ D.C. were having illicit relationship. Accused Kulwinder Singh had threatened him that he would murder Tarsem Lal.
5. On 30.05.2005 at about 2.00 A.M. to 3.00 A.M. accused Kamlesh Rani made a telephonic call to PW4 Sohan Lal informing him that her husband Tarsem Lal and her son Sunil Kumar were attacked by some unknown persons. PW4 Sohan Lal, PW9 Naranjan Dass, PW5 Singh Parvinder 2013.10.11 15:28 I attest to the accuracy and integrity of this document Criminal Appeal No. D-403-DB of 2010 and Criminal Appeal No. D-835-DB of 2010 3 Satpal and one Harkirat Lal proceeded to the house of the deceased. They found Tarsem Lal dead with injuries on his body. PW4 suffered a statement before PW13 S.I. Ravinder Singh. His statement Ex.PG was registered as formal First Information Report. PW13 proceeded to the scene of occurrence at about 6.00 A.M. on 30.05.2005. He prepared rough site plan Ex. PQ. He held inquest and prepared inquest report Ex. PE.
6. PW5 Satpal who was the brother's son of the deceased took the injured PW12 Sunil Kumar to the hospital for treatment. On the way he saw the accused Kulwinder Singh @ D.C. and Raju trying to start their scooter. Raju was found holding in one hand a Kirpan along with its sheath and in the other hand an iron rod. Both were found to be in perplexed condition. When PW5 inquired about their presence over there, both of them sped away on their scooter.
7. PW11 Dr. Sat Pal Banga medico legally examined PW12 Sunil Kumar at about 5.50 A.M. on 30.5.2005. He found a red contusion measuring 6.0 x 4.04 cm on the left side of the skull. There was also an incised wound measuring 6.0 x 1.5 cm on the right side of back. The first injury would have been caused by a blunt weapon and the second injury would have been caused by a sharp edged weapon. He has deposed that the injured Sunil Kumar was brought by his uncle Naranjan Dass. The copy of the medico legal report was marked as Ex. PQ.
8. PW3 Dr. Jaswinder Singh conducted post mortem examination on the dead body of Tarsem Lal on 30.05.2005 at about 3.40 P.M. He found the following injuries on the dead body of Tarsem Singh Parvinder 2013.10.11 15:28 I attest to the accuracy and integrity of this document Criminal Appeal No. D-403-DB of 2010 and Criminal Appeal No. D-835-DB of 2010 4 Lal:-
1. Incised wound 5x1 cm oblique on right forehead starting from lateral end right eyebrow extending upwards and medially.
2. Lacerated wound 10x3 cm with bone underneath fractured (gutter fracture) present on the left side of forehead, medial and lower end of which is 1 cm above medial and left eyebrow extending upwards to left parietal region of scalp. Brain matter underneath injured and visible Membranes were injured.
3. Lacerated wound 1x0.5 cm present on lateral end left eye brow, bone underneath depressed fractured.
4. Reddish contusion 2.5 cm x 2 cm on left cheek, 1.5 cm below left lower eyelid.
5. Reddish contusion 1x 0.5 cm on upper half of nose. Bone underneath fractured.
6. Lacerated wound 1.5 x 0.5 cm oblique on left side upper lip just below left nostril, underneath bone of upper jaw was fractured and left 2nd incisor and canine teeth dislocated from its sockets.
7. Incised wound elliptical in shape present on right side of chest anteriorly, 3 cm medial to right nipple on dissection, underneath rib was cut and injuring underlying right lung. The right chest cavity was full of blood.
8. Incised wound 3 x 1 cm elliptical in shape was present on left chest, 5 cm above left nipple. On dissection wound extends inwards injuring the underneath left lung. The left chest cavity was full of blood.
9. Incised wound 3 x 1 cm elliptical in shape was present on the left chest anteriorly, 3 cm medial to injury No. 8.
On dissection underneath rib was cut. The wound extends inwards and medially injuring the hurt anteriorly and cut through and through. The Pericardial cavity was full of blood.
Singh Parvinder2013.10.11 15:28 I attest to the accuracy and integrity of this document Criminal Appeal No. D-403-DB of 2010 and Criminal Appeal No. D-835-DB of 2010 5
10. Incised wound 2.5 cm x 1 cm elliptical in shape was present on left shoulder anteriorly.
11. Incised wound 3.5 cm x 1 cm muscle deep obliquely was present on lateral aspect of middle third left arm.
12. Reddish abrasion 5.5 x 0.3 cm obliquely on left chest 4 cm lateral to left nipple.
13. Incised wound 3 x 1 cm oblique on left side of the abdomen in mid axilliary line, 12 cm above left anterior superior iliac spine. On dissection the descending colon was cut.
14. Two reddish abrasions 1.5 cm apart from each other measuring 5 x 0.3 cm each was present on dorsal aspect of distal third left fore-arm.
15. Reddish abrasion 2 x 0.3 cm on dorsal aspect left hand 4 cm proximal to base of left middle finger.
16. Incised wound 3 x 1 cm elliptical in shape was present on posterior aspect lower third, right chest, 10 cm lateral to mid vertebral line. On dissection the wound extends to abdominal cavity upwards injuring right side of liver inferiorly. The abdominal cavity was full of blood.
17. Incised wound 2.5 x 1cm elliptical in shape obliquely placed on lower third left chest posteriorly .2 cm lateral to mid vertebral line.
9. In the opinion of the Board of Doctors Tarsem Lal had died due to hemorrhage and shock on account of ante mortem injuries on his head, thorax and abdominal organs which were sufficient to cause death in the ordinary course of nature.
10. PW12 Sunil Kumar who was six years old at the time of occurrence was examined during the course of trial. He deposed that when he was sleeping along with his parents, accused Kulwinder Singh @ D.C. armed with Kirpan and accused Raj Kumar @ Raju armed with an iron rod came to his house. His mother accused Kamlesh Rani Singh Parvinder 2013.10.11 15:28 I attest to the accuracy and integrity of this document Criminal Appeal No. D-403-DB of 2010 and Criminal Appeal No. D-835-DB of 2010 6 declared that his father should be done to death. Accused Kulwinder Singh and Raj Kumar attacked his father Tarsem Lal with the weapons they held. Accused Kulwinder Singh also attacked him and caused injury. His mother threatened him that she would kill him if he chose to disclose the occurrence to anyone.
11. PW13 S.I. Ravinder Singh arrested accused Kulwinder Singh on 17.6.2005 and recovered the Bajaj Chetak scooter from his custody.
12. Accused Raj Kumar and Kamlesh Rani were also arrested on the same day. On the basis of the disclosure statement suffered by Kulwinder Singh on 19.6.2005, the blood stained Kirpan was recovered under the heap of fire woods. On the basis of the disclosure statement suffered by accused Raj Kumar, an iron rod which was kept concealed near cremation ground of the village was also recovered.
13. The FSL report Ex. PX would disclose that the Kirpan allegedly recovered from accused Kulwinder Singh contained human blood.
14. In the statement under Section 313 Cr.P.C. the accused have come out with a version that they were falsely implicated.
15. The learned counsel appearing for the accused/appellants would vehemently submit that it was a blind murder as per the original version of the complainant PW4 Sohan Lal but it was converted as a murder committed in the presence of PW12 who was introduced as witness for the first time during the course of trial. The evidence of PW4 Sohan Lal that he spotted accused Kulwinder Singh and Raj Kumar after the occurrence along with weapon was totally artificial. The Singh Parvinder 2013.10.11 15:28 I attest to the accuracy and integrity of this document Criminal Appeal No. D-403-DB of 2010 and Criminal Appeal No. D-835-DB of 2010 7 medical evidence would go to establish that it was PW9 Naranjan Dass who admitted PW12 Sunil Kumar for treatment. But the prosecution made an attempt to suppress the above fact with a view to introduce PW5 Satpal as a witness who spotted the presence of accused Kulwinder Singh and Raj Kumar with weapons on the way to the hospital. The evidence of PW12 Sunil Kumar whose statement was not recorded under Section 161 Cr.P.C. and was introduced for the first time during the course of trial does not inspire confidence. The prosecution has come out with an unbelievable story as regards motive for the murder. PW4 has not whispered anything about such a motive in the First Information Report. The witness Harbans Lal before whom the accused allegedly suffered extra judicial confession was not examined before the trial court. It is his submission that a case had been launched against the accused only based on suspicion.
16. The learned counsel appearing for the complainant Sohan Lal as well as the learned Additional Advocate General appearing for the State of Punjab would submit that the trial court has rightly recorded conviction based on the evidence of PW4, PW5, PW9 and PW12 in the background of the medical evidence available on record. It is also submitted by the learned counsel appearing for the complainant Sohan Lal that the legal heirs of the deceased Tarsem Lal are entitled to compensation.
17. That it was a case of blind murder was the original version of the prosecution. The original version of the prosecution is found in the First Information Report lodged by PW4 Sohan Lal who was none other than the brother of deceased Tarsem Lal. He was very categoric Singh Parvinder 2013.10.11 15:28 I attest to the accuracy and integrity of this document Criminal Appeal No. D-403-DB of 2010 and Criminal Appeal No. D-835-DB of 2010 8 that it was a case of blind murder. It is to be noted that he had not stated anything about the motive for the murder in the F.I.R.
18. PW4 had deposed before the court that about six days earlier to the occurrence, his brother Tarsem Lal informed him that accused Kamlesh Rani and accused Kulwinder Singh @ D.C. had illicit relationship and that accused Kulwinder Singh threatened to murder him. If such was the vital information PW4 had received about five or six days before the occurrence, he would have definitely suspected not only the role of accused Kulwinder Singh but also the accused Kamlesh Rani. But, the First Information Report is conspicuously silent about the motive for the murder. The very fact that PW4 had not suspected the role of accused Kulwinder Singh and Kamlesh Rani at the first instance would go to demonstrate that the prosecution had planted the motive part of the story in the mouth of PW4 Sohan Lal.
19. In our view, if such a motive was the cause for the murder of Tarsem Lal there was no reason for Kulwinder Singh to attack PW12 Sunil Kumar. If at all Kulwinder Singh was involved in the occurrence and wanted to silence PW12 Sunil Kumar as well during the course of occurrence, there was no reason for him who was allegedly armed with Kirpan to leave PW12 with minor injuries. For the foregoing reasons, we come to a conclusion that the motive part of the case projected by the prosecution is an invented story to squarely fit in the version of the prosecution.
20. Let us now take up the evidence of PW5 Satpal, the brother's son of the deceased. He speaks to the fact that he saw accused Kulwinder Singh and Raj Kumar with Kirpan and an iron rod on Singh Parvinder 2013.10.11 15:28 I attest to the accuracy and integrity of this document Criminal Appeal No. D-403-DB of 2010 and Criminal Appeal No. D-835-DB of 2010 9 the way to the hospital. The medico legal report Ex. PQ would disclose that PW12 Sunil Kumar was admitted to the hospital for treatment by PW9 Naranjan Dass and not by PW5 Satpal. PW11 Dr. Sat Pal Banga was categoric that it was only PW9 Naranjan Dass who brought PW12 Sunil Kumar and admitted him to the hospital for treatment. Therefore, the case of the prosecution that PW5 Satpal accompanied the injured Sunil Kumar to the hospital is found to be shaky.
21. It is the evidence of PW5 that when he proceeded to the hospital along with one Harkirat for giving treatment to PW12 he saw accused Kulwinder Singh and Raju trying to start their scooter. Raju was holding a Kirpan with its sheath and an iron rod. They were found in a perplexed condition. When he inquired about their presence over there, both of them left at a high speed on their scooter.
22. There was no reason for accused Kulwinder Singh @ D.C. and Raj Kumar @ Raju to stay put at a place located about one kilometer away from the scene of crime for about 2½ hours. Secondly, there was no reason for the accused to take the iron rod also along with them after the commission of the crime. PW12 had sustained injury. He was a boy of six years old. PW5 would have driven his scooter at greater speed to reach the hospital for giving proper treatment at the earliest point of time. He would not have thought of stopping the scooter for the purpose of making an inquiry with certain persons who were standing on the way to the hospital with a Kirpan. His presence near Hotel Karam, Mahilpur as well as his presence at the hospital for admitting PW12 for treatment is found to be highly doubtful. In our considered view, the prosecution has made an attempt to suppress the Singh Parvinder 2013.10.11 15:28 I attest to the accuracy and integrity of this document Criminal Appeal No. D-403-DB of 2010 and Criminal Appeal No. D-835-DB of 2010 10 fact that it was only PW9 Naranjan Dass who admitted PW12 for treatment, in order to project an invented theory that PW5 Satpal on the way to the hospital taking PW12 for treatment happened to meet the accused Kulwinder Singh and Raju with Kirpan. Such a story of the prosecution does not inspire confidence.
23. The star witness in this case was PW12 Sunil Kumar, the six years old son of accused Kamlesh Rani and deceased Tarsem Lal. Firstly, we find that no statement under Section 161 Cr.P.C. was recorded from him. The threat, if any, wielded by his mother would have vaporised, the moment PW4, PW5 and PW9 reached the scene of occurrence and took him in their fold.
24. It is true that PW12 Sunil Kumar had sustained injuries in the occurrence. It is quite surprising that his statement under Section 161 Cr.P.C. was not recorded by the Investigating Officer. Nor had the Investigating Officer recorded the statements of the other two children who were in the house at the time of occurrence. It is quite big a lie to say that PW12 was under trauma for about 2½ years till the trial began. In our view, as the child of six years had gone into the protective fold of his uncles, all fears and trauma would have completely vanished.
25. We also find that PW12 who was just six years old at the time of occurrence had been under care and protection of his uncles. There is every possibility for tutoring such a tender age child by his protectors. The very fact that he had not opened his mouth as regards the occurrence for about 2½ years from the date of occurrence speaks volumes of the tutored version of the child witness projected for the first time before the court in order to overawe the defence. In our considered Singh Parvinder 2013.10.11 15:28 I attest to the accuracy and integrity of this document Criminal Appeal No. D-403-DB of 2010 and Criminal Appeal No. D-835-DB of 2010 11 view, the evidence of the child witness Sunil Kumar does not pass the test of credibility. It would be highly dangerous to rely upon the testimony of such a child witness who had been tutored to record conviction in a heinous crime of murder. In the above circumstances, we have no hesitation to reject the testimony of PW12 Sunil Kumar.
26. PW13 S.I. Ravinder Singh spoke of the extra judicial confession alleged to have been suffered by the accused before Harbans Lal. The said Harbans Lal was not examined before the trial court. The stock reason was that he was won over by the defence. We fail to understand the verdict being passed by the prosecuting agency that a witness was won over before ever he was brought before the trial court for deciding whether he turned hostile. Such a witness should have been examined, even in the opinion of the prosecuting agency that he would not support the case of the prosecution. The extra judicial confession alleged to have been suffered by the accused has thus died a premature death.
27. The prosecution has come forward with the alleged recovery of Kirpan on the basis of the disclosure statement suffered by accused Kulwinder Singh. The FSL report would disclose that the Kirpan contained human blood. The group of blood found on the Kirpan was not connected to the blood group of the deceased Tarsem Lal. Therefore, it would not be safe to convict the accused merely based on such a recovery made from the accused/appellant.
28. For all these reasons, we find that the prosecution miserably failed to establish the charges as against the accused appellants. They are entitled to acquittal. Accused Kulwinder Singh @ Singh Parvinder 2013.10.11 15:28 I attest to the accuracy and integrity of this document Criminal Appeal No. D-403-DB of 2010 and Criminal Appeal No. D-835-DB of 2010 12 D.C. is undergoing sentence. He be set at liberty forthwith, if his custody is not required in connection with any other case. Accused Raj Kumar @ Raju and accused Kamlesh Rani are on bail. The bail bonds executed by them shall stand discharged. Consequently, the Criminal Appeal No. D-403-DB of 2010 is allowed and Criminal Appeal No. D- 835-DB of 2010 stands dismissed.
(M.JEYAPAUL) JUDGE (ANITA CHAUDHRY) JUDGE October 03, 2013 p.singh Singh Parvinder 2013.10.11 15:28 I attest to the accuracy and integrity of this document